The FOIA blog

Excellent Letter from Citizen Regarding FOIA Amendments

Erin L. Borry of Nashua, NH has written this letter to the Nashua Telegraph about what is really needed to improve the FOIA.  If Erin Borry gets it, why didn't the Congress?

Update:  From the comment below, I should have made it more specific that I agreed with the writer's final thoughts not the actual analysis of the new law.  For what it's worth, putting the Reno discretionary disclosure policy into law would be a huge benefit to requesters.  Finally, many believe that I have never had control of my senses in the first place!

D.C. Circuit Court Rules on Exemption 5 Threshold Case

In a lengthy 2-1 decision, the United States Court of Appeals for the District of Columbia Circuit has decided in the National Association of Military Justice v. The Department of Defense, that opinions solicited from outside attorneys on agency policy meet the inter/intra agency threshold test of Exemption 5, and are therefore, withholdable under the FOIA.

The records at issue are recommendations from non governmental attorneys to the Department of Defense ("DOD") concerning recommendations on regulations establishing terrorist trial commissions.  The recommendations were specifically solicited from the attorneys by the DOD.  DOD withheld the recommendations pursuant to Exemption 5's deliberative process privilege.  The requester argued that the documents were not inter/intra government, and pursuant to the Supreme Court's holding in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), the documents must be released.

Two judges (Henderson and Williams) agreed with the DOD and found that the holding in Klamath did not invalidate a line of precedent in the D.C. Circuit that allowed outside consultants, such as the lawyers in this case, to be invalidated from Exemption 5.  The Court drew distinctions from the present case and Klamath in reaching its decision.

However, another judge on the panel (Tatel) disagreed with the conclusion and stated that the holding in Klamath prevented the outcome reached in the case.

It will be interesting to see if the requesters press this and try to obtain a rehearing before the entire Court and/or the Supreme Court. 

Around the States

2008 promises to have more states looking at changing their public record laws.

As I have often discussed, Pennsylvania continues its major overhaul of its anti-transparency Right-to-Know law.

In North Dakota, it has been reported that Democrats are seeking to change the state public records law, and that Republican lawmakers have been meeting with the governor to discuss what changes the GOP would accept.

The Iowa legislature is also looking at making changes to its open records law.  Namely, it is being reported that lawmakers are looking at the creation of an agency that could enforce the open records law on behalf of requesters.

All in all, 2008 looks like another year of attempted change for state open records.

IRS Loses Collateral Estoppel Argument

The IRS has lost a decision in which the plaintiff argued that a decision in a non-FOIA that certain privileges were not available for documents estopped the IRS from arguing that the same privileges were still applicable in the FOIA context.

The case of Stonehill v. Internal Revenue Service involves records created in the 1960's.  The estate of Stonehill is currently trying to reverse a previous tax judgment against it, and is seeking the documents in numerous forums to assist in this fight. 

The IRS argued that documents it withheld were exempt pursuant to FOIA exemptions 5, 6 and 7(C).  Plaintiff contested these exemptions, and in many cases, the Court agreed with plaintiff.

Judge John D. Bates of the District Court for the District of Columbia has held that collateral estoppel (issue preclusion) denies the IRS from asserting exemption 5 privileges that were previously denied in a non-FOIA Federal Rules of Civil Procedure Rule 60(b) case.  In other words, if the IRS lost its privilege arguments in another court, even if it wasn't a FOIA case, they can't assert those privileges in the FOIA matter.  However, the IRS did not waive other privileges or withholdings on where those privilege/withholding arguments were not previously made.

The IRS also lost its argument to withhold certain information pursuant to FOIA exemption 6/7C (the privacy exemptions).  The IRS was attempting to withhold the names of certain IRS special agents.  The Court found that the government failed to show a privacy interest in one agents name where, in this case, other agents have been previously identified in the matter.  Thus, the Court concluded, the public interest asserted by the plaintiff is greater than the negligible privacy interest identified by the government.

Significance of Attorney Fees Coming from Authorized Appropriation?

A savvy reader writes in and ask "what is the significance of attorney's fees coming from any authorized appropriation rather than Judgment Fund?"

Currently, attorney fees in FOIA suits are payed out of the judgment fund which is a fund administered by the Department of Justice (DOJ).  Thus if Homeland Security loses a FOIA suit and is obligated to pay attorney fees, it doesn't come from Homeland Security funds, it comes from the DOJ judgment fund.

Under the new law, these fees will have to come from the agency's congressionally mandated appropriation rather than the DOJ judgment fund.  The idea is to make bad FOIA decisions that force litigation and result in attorneys fees paid to plaintiff's to hurt agencies in their own pocketbooks. 

In theory it is a good argument.  However, in most agencies, personnel making FOIA decisions and those making funding decisions are not the same.  Further, in billion dollar budgeted agencies, a $25,000 attorneys fee is peanuts.  So, I'm not sure the change in who pays the attorney fees will have as big of an impact as the writers of the law imagined. 

   

SEC FOIA Article

This is an interesting article on law.com about the SEC and it's FOIA Office.  It discusses a lawsuit I was co-counsel on (the authors of the article never contacted me, so I had nothing to do with the conclusions of the article).  You can read it here.

OIP, Metcalfe to Hold Meetings on New FOIA Law on Same Day

The Department of Justice's Office of Information and Privacy ("OIP") will hold a conference on the recently enacted FOIA Law on January 16th (See this link for more details).  This conference is aimed at upper level government FOIA people.  OIP says it will follow up with more guidance to be published on its website soon.

At the same time, Dan Metcalfe's newly named Collaboration on Government Secrecy ("CGS"), headquartered at the law school of American University will hold a "FOIA Community Conference on the FOIA Amendments of 2007," Wednesday January 16, 9:00-12:30, at the Washington College of Law. Featuring National Archives and Records Administration General Counsel Gary M. Stern.  For more details on this event, which seems to be aimed at the entire FOIA community click here.  Metcalfe was the former head of OIP until his retirement in early 2007.  Since his retirement, Metacalfe has criticized the Department of Justice in a number of media sources.

I'll be interested to see if both events go on as scheduled.  For what its worth, I understand the CGS event was scheduled, or at least posted on-line first. 

My Latest Article

My latest article for the December issue of LLRX.com can be found here.

AP Reverses Itself on New FOIA Law

The Associated Press has now apparently read the new FOIA law signed by President Bush on December 31, 2007 and agreed with those of us who have gone on the record that the new law does not expressly override the Ashcroft Memorandum of October 2001.

As far as I can tell, the new law really doesn't change the procedures for withholding information from the way it is done presently.

Other Voices on new FOIA Law

Others are agreeing with my previous comments on the new FOIA law.  This article by Steve Aftergood of Secrecy News agrees with me that the Ashcroft memorandum was not overturned by the new law (note--even though Steve's article is dated prior to mine on the same subject, I didn't read it until after my article was posted).  Further, Bob Gellman, who worked on FOIA issues in the House of Representatives for many years comments that the Ombudsman's Office established at the National Archives by the law is not even funded!  Harry Hammitt of Access Reports comments that we'll most likely have to wait ten more years to fix problems not dealt with in this law.

Hopefully, the winds of change will continue to blow and 2009 will bring REAL FOIA reform that funds FOIA Offices and makes the Reno discretionary disclosure policy the actual law.